Does Ohio Law Allowing Commitment of Mentally Ill Criminal Defendants Violate Their Due Process Rights?

ISSUE: Under Ohio R.C. 2945.39, when a mentally ill person has been indicted for a violent felony but found incompetent to stand trial, and a common pleas court finds that after one year of treatment there is no substantial probability the defendant can be restored to competence in the foreseeable future, the trial court may involuntarily commit the accused to a psychiatric hospital if the state shows by clear and convincing evidence: 1) that the accused falls within the legal definition of a mentally ill person subject to hospitalization; and 2) that the accused committed the violent felony with which he was charged. In this case, a Dayton man who was indicted on a violent felony count, found incompetent to stand trial and involuntarily committed to a mental hospital under R.C. 2945.39 asks the Supreme Court to affirm a court of appeals ruling that the statutory commitment process violated his constitutional rights to due process and equal protection of the law.

BACKGROUND: In 2005, Thonex Williams of Dayton was indicted on multiple criminal charges including one count of rape, which is a first-degree felony and an offense of violence. Pursuant to a motion by Williams’ attorney, the trial court ordered that he undergo a psychiatric examination to determine whether he was competent to stand trial. Based on the results of that examination, the court declared that Williams was mentally incompetent and temporarily committed him to a mental health facility. At the end of one year of treatment, the trial court found that Williams remained incompetent to stand trial and that there was no substantial probability that he could be restored to competency in the foreseeable future.

At that point, the court had two options: 1) dismiss the criminal indictment against Williams and refer his case to the local probate court for civil commitment proceedings; or 2) retain jurisdiction over the case (keeping the criminal indictment in force) by conducting a hearing specified in R.C. 2945.39 at which the court must find by clear and convincing evidence that Williams was a mentally ill person who presented a danger to the community if not hospitalized, and that he had committed the rape offense with which he was charged. The court opted to conduct the statutory hearing, made the required findings, and exercised continuing jurisdiction over Williams’ case. Pursuant to R.C. 2945.39, Williams was committed to continuing confinement in a psychiatric hospital until he was either found competent to stand trial on the rape charge or completed a term of hospitalization equal to the maximum prison sentence he could have received if he had been tried and convicted on the rape charge.

Williams appealed, arguing that the involuntary commitment hearing prescribed under R.C. 2945.39 is in effect a criminal rather than a civil proceeding, and that the hearing guidelines set forth in the statute violate defendants’ constitutional rights to a jury, to a speedy trial, and to the requirement that the state must prove their guilt of a criminal charge “beyond a reasonable doubt.” The 2nd District Court of Appeals agreed and reversed the trial court’s commitment order. The Montgomery County prosecutor’s office sought and was granted Supreme Court review of the 2nd District’s ruling, and a stay was imposed on enforcement of the court of appeals order.

Attorneys for the state argue that the commitment process for mentally ill criminal defendants prescribed in R.C. 2945.39 is a civil proceeding similar to the involuntary commitment process for incompetent persons not facing criminal charges set forth in R.C. Chapter 5122, and is therefore not subject to the constitutional requirements for a criminal proceeding. They contend that the legislative intent underlying the statute is not to punish the offender or deter him from committing future crimes, but is rather to protect the public from future injury based on the offender’s identified mental illness and demonstrated potential for violent behavior.

They point out that while civil commitment under Chapter 5122 requires only a finding that the committee is mentally ill and a danger to himself or others, R.C. 2945.39 imposes a higher burden on the state by authorizing commitment only after an additional finding by clear and convincing evidence that the accused has committed a violent felony. They also note that while civil commitment under Chapter 5122 can be indefinite pending a showing of the patient’s return to competency, R.C. 2945.39 limits an accused’s involuntary hospitalization to the maximum term of incarceration that could be imposed for his felony offense.

Attorneys for Williams urge the Court to affirm the 2nd District’s conclusion that the commitment process set forth in R.C. 2945.39 is criminal in nature because it bases the decision to commit a defendant on a specific finding that he or she has committed a crime; and sets the term of the accused’s commitment according to the maximum criminal penalty applicable to the crime for which he or she was indicted. They argue that the criteria for commitment under R.C. 2945.39 are plainly unconstitutional because they subject Williams and other defendants like him to a potential lifetime deprivation of freedom without requiring the state to establish their guilt of the charged offense by the constitutionally mandated criminal standard of “beyond a reasonable doubt.”

Must State Show that Destroyed Evidence Would Not Have Supported Defendant’s Claim of Innocence?

ISSUE: When evidence in a criminal case is destroyed by an agent of the state after the defendant has entered a general discovery request, does the state assume the burden of proving that the missing evidence was not “materially exculpatory” (would not have supported the defendant’s claim of innocence)?

BACKGROUND: In June 2006, State Trooper Luke Forshey and Sergeant Todd McDonald stopped Michael Lupardus for speeding near Marietta. The dashboard-mounted camera in the patrol car recorded all relevant portions of the traffic stop. After smelling alcohol on Lupardus’ breath and observing other signs of intoxication, Forshey asked Lupardus to exit the car and perform several field sobriety tests including tests in which he was required to maintain balance while standing on one leg and to walk several steps in a straight line and turn around without losing his balance. At the conclusion of the tests, Lupardus was arrested for DUI. Forshey reviewed the video during the preparation of his arrest report. Pursuant to procedure, he then preserved the videotape in an evidence area at the Highway Patrol post.

Before he came to trial on the DUI charge, Lupardus’ attorney filed a general discovery motion seeking to examine the state’s evidence in the case, but not specifically mentioning the video. Several weeks later, in response to the discovery request, McDonald instructed a more experienced officer to assist Forshey in using new equipment at the post to copy the videotape of the traffic stop on to a DVD. The other officer showed Forshey what to do, but then left the room while Forshey actually operated the equipment. Forshey inadvertently recorded the blank DVD onto the videotape cassette instead of vice versa, thereby erasing all of the Lupardus arrest video.

After being informed that the video had been destroyed, Lupardus filed pretrial motions asking the Marietta Municipal Court to dismiss the DUI charge or exclude any trial testimony by Forshey regarding the traffic stop and field sobriety tests because the state’s action had deprived the defense of any chance to view the tape and potentially use it to challenge the state’s claim that Lupardus had failed the sobriety tests. The trial court denied the motions to dismiss or exclude police testimony about the traffic stop, ruling that Lupardus had not met his burden of proving either that the content of the missing video would have materially supported his claim of innocence, or that Forshey acted in bad faith in destroying the requested evidence. Lupardus subsequently entered a plea of no contest and was convicted on the DUI charge.

He then appealed the trial court’s denial of his pretrial motions to dismiss or suppress testimony about the traffic stop based on the missing video. On review, the 4th District Court of Appeals affirmed the decision of the trial court. Among other reasons supporting its conclusion, the court of appeals held that in order to shift the burden of proof about the exculpatory nature of missing evidence to the state, a defendant must have previously filed a discovery request for the specific piece of evidence that was destroyed, and not just a general request to view all of the state’s evidence. Lupardus sought and was granted Supreme Court review of the lower courts’ decisions regarding if and when the burden of proving that missing evidence in a criminal case would be exculpatory shifts from the defendant to the state.

Attorneys for Lupardus argue that the filing of a discovery request like the one they submitted in this case is sufficient to impose a duty on the state to preserve and produce all relevant evidence in its possession. In this case, they point out, there is no question that the prosecutor was on notice that the defendant’s discovery request included the video of his arrest, because the destruction of the tape was a result of a botched attempt by the state to comply with the discovery request. They argue that when the state fails in its duty to preserve evidence after a discovery request, thereby depriving the defendant of any opportunity to review that evidence to identify potentially exculpatory content, it is virtually impossible for the defendant to show that the missing material had exculpatory value. Under these circumstances, they assert, prior court decisions have held that the burden of proof shifts to require that the state prove the evidence it destroyed was not favorable to the defense. And if the state fails to meet that burden, they say, the charge against the defendant must be dismissed.

Arguing for the state, attorneys from the Marietta law director’s office urge the Court to affirm the 4th District’s ruling that the content of the erased videotape would not have been “materially exculpatory” because other evidence in the case, including Lupardus’ failure of other tests and admission that he had consumed eight beers earlier that evening, was more than sufficient to support his conviction for DUI. They contend that prior court decisions requiring a shifting of the burden of proof from the defendant to the state have been based on a finding that the defendant had entered a request to examine the specific item of evidence that was destroyed, and/or a finding that evidence was destroyed after the state failed to make any effort to comply with a defendant’s discovery request. In this case, they say, Lupardus did not specifically request the videotape of the traffic stop, and the destruction of the tape was not a result of bad faith by the state but rather an accident that occurred while police were attempting to provide the defendant with a copy.

Are Township Trustees Who Opposed Land Annexation
a ‘Party’ Eligible to Challenge Approval in Lawsuit?

ISSUE: Under a state law prescribing procedures for the “expedited” annexation of property in a township into an adjoining municipality, do township trustees who exercise their statutory right to file objections to a particular annexation petition thereby become a “party” to that proceeding, with legal standing to file a subsequent mandamus action challenging the county commissioners’ approval of the annexation?

BACKGROUND: In October 2007, Waterwheel Farms Inc. filed a petition with the Montgomery County Board of Commissioners seeking to have 78.489 acres of its property located within Butler Township annexed into the adjacent city of Union. The petition specified that annexation was sought under R.C. 709.023 as an “Expedited Type II Annexation” in which the property owner and the municipality had mutually agreed to all terms and conditions of annexation.

Prior to the county commissioners’ consideration of the petition, as permitted by statute, the Board of Trustees of Butler Township adopted a resolution setting forth an objection to the proposed annexation and forwarded that resolution to the county commissioners. The objection claimed that the annexation of Waterwheel Farms’ property by the city would cause road maintenance problems for a portion of a road adjacent to but not within the annexed area because the city had not entered into an agreement with the township regarding maintenance of that roadway. The commissioners subsequently approved the requested annexation notwithstanding the township’s objection.

The township trustees filed suit asking the Montgomery County Court of Common Pleas to issue a declaratory judgment that the commissioners had acted contrary to law in approving the annexation and seeking a writ of mandamus that would compel the commissioners to rescind their order approving the petition. The trial court dismissed the trustees’ complaint, ruling that under R.C. 709.023 only a “party” to the annexation proceeding had legal standing to file a mandamus action challenging the commissioners decision in the case, and the township was not a “party” as that term is defined in the applicable statute The township appealed the common pleas court ruling to the 2nd District Court of Appeals. On review, the court of appeals affirmed the trial court’s ruling that the township did not have legal standing to sue for reversal of the commissioners’ decision granting the proposed annexation. Butler Township sought and was granted Supreme Court review of the trial and appellate court decisions.

Attorneys for the township argue that by authorizing township trustees to participate in Type II expedited annexation cases either by adopting supporting resolutions or filing objections, R.C. 709.023 recognizes a township as a party with a vital interest in those proceedings, and thereby gives a township legal standing to pursue after-the-fact relief by way of mandamus in cases where county commissioners fail to follow the law in approving an annexation petition. They contend that, because Type II expedited annexations by definition already have the support of both the property owner and annexing city, the lower courts’ interpretation of the law would leave no “party” with standing to invoke the remedy of a mandamus action if county commissioners act illegally by approving a petition that does not meet the statutory criteria.

In this case, they argue, the commissioners made factual findings that the property owner and the municipality had met six of seven specific requirements set forth in the statute, but did not make a finding on the seventh criterion, which requires a prior agreement by the annexing city to assume maintenance or fix any problems on roadways impacted by the annexation. Because the statute requires that commissioners may grant a Type II petition only after finding that all of the stated criteria have been met, they argue, the trial and appellate courts erred not only in denying the township’s standing to file a mandamus claim, but also in failing to issue the requested writ rescinding the county commissioners’ ruling.

Attorneys for the property owner and county commissioners urge the Court to affirm the rulings of the trial and appellate courts that R.C. 709.023 does not recognize a township as a “party” in a Type II expedited annexation case. They point out that the expedited annexation process at issue in this case was part of legislation adopted by the General Assembly in 2001 for the express purpose of eliminating litigation-related delays in the granting of annexation requests in which all of the affected property owners supported the petition. Because townships are created by statute, they point out, they do not have inherent powers but rather are limited to authority that is expressly conferred on them by the legislature. In the case of Type II expedited annexation proceedings, they assert, the legislature intentionally limited the role of townships to filing objections to a proposed annexation with county commissioners, and did not extend to them legal standing to seek relief in mandamus in cases where annexation was granted despite the township’s objection.

Even if the Court should hold that the township did have standing to file its mandamus action, they assert, the trial and appellate decisions should still be upheld because both courts also found that the specific objection raised by the township trustees in this case was without merit. Because the annexation sought in this case did not involve dividing or segmenting a roadway adjacent to the annexed land, they say, the seventh statutory criterion for approval was not applicable to the Waterwheel petition and the county commissioners did not err by failing to make an affirmative finding addressing road maintenance in their decision approving annexation.

Court Asked to Confirm Attorney General’s Reading of State Law Protecting Children from Internet Obscenity

Ohio Attorney General Richard Cordray and Franklin County, Ohio, Prosecuting Attorney Ron O'Brien v. American Booksellers Foundation for Free Expression et al., Case no. 2009-0609
Certified Questions of State Law from U.S. 6th District Court of Appeals

ISSUE: Does this Court agree with the Ohio attorney general’s interpretation of language in a state law designed to protect children from harmful and sexually explicit materials transmitted via electronic communications media including the Internet?

BACKGROUND: Ohio R.C. 2907.31 makes it a crime to directly disseminate or offer to disseminate to a juvenile any material or performance that is “obscene or harmful to children” as those terms are defined elsewhere in state law. In Paragraph D of that statute, which prohibits the dissemination of harmful or obscene material to a juvenile “by means of an electronic method of remotely transmitting information,” the law exempts from prosecution: 1) a person who “has inadequate information to know or have reason to believe that a particular recipient of (adult material) is a juvenile;” and 2) a person making adult material available electronically if “the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”

In 2007, the U.S. District Court for the Southern District of Ohio granted an injunction sought by the American Booksellers Foundation for Free Expression barring the state attorney general and the county prosecutors in Ohio’s 88 counties from enforcing the provisions of R.C. 2907.31 that address electronic dissemination of harmful or obscene materials. The court based its ruling on a finding that the language of those provisions was unconstitutionally overbroad. The state, represented by Attorney General Richard Cordray and county prosecutors, appealed the district court’s ruling to the U.S. 6th Circuit Court of Appeals.

After reviewing the parties’ written pleadings, the 6th Circuit asked the Supreme Court of Ohio to review the statutory language under dispute and the interpretation of that language advanced by the attorney general, and then to answer two specific questions: 1. “Is the Attorney General correct in construing R.C. 2907.31(D) to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?” 2. “Is the Attorney General correct in construing R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?”

The attorney general argues that changes made by the General Assembly in 2004 to a prior version of the statute now make it clear that the law does not apply to mass media entertainment materials, or to the electronic content of generally accessible Web sites or messages exchanged in public chat rooms. He asserts that the amended language prohibits only actual or attempted electronic communications that contain harmful or obscene material and that are intentionally or recklessly directed to specific persons whom the sender knows or should know are juveniles by means of direct communications media such as e-mail, individual messaging (IM) or private chat rooms not accessible to the public. The state also argues that the statute protects the free speech rights of adults by clearly barring prosecutions for electronic communications that reach juveniles where the sender or poster of adult material did not knowingly direct it toward a juvenile, and had no ability to prevent any particular recipient or site visitor from seeing it.

Attorneys for the booksellers and their co-respondents argue that the broad language of R.C. 2907.31(D) does not adequately identify or distinguish between the wide range of “direct” electronic communications and Web-based media applications that might or might not subject a user to prosecution for transmitting or posting adult text, video or live content that reaches juveniles. As an example, they note that while the attorney general cites “emails” conveying adult content as a prosecutable form of direct communication, there is nothing in the statute that distinguishes between direct one-to-one email or IM communications and “group” email applications such as listservs and USENET discussion groups in which participants “directly” send content and Web links to a self-selected mailing list that may include hundreds or thousands of subscribers whose identities and ages are generally unknown to other members. They also contend that the attorney general’s reference to “generally-accessible Web sites” does not make it clear whether that category includes sites that are accessible to anyone but require user registration, sites that are accessible to anyone but require a paid subscription to all or some content, or sites where adult content is posted on restricted sub-pages.

They urge the Court to reject the attorney general’s claim that the current statutory language is sufficiently precise and unambiguous that a typical citizen can understand what specific conduct it permits and prohibits, and that police and courts across the state can apply and enforce it consistently.

Contacts
Benjamin C. Mizer, 614.4668.980, for Attorney General Richard Cordray and county prosecutors.

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